Amidst all the legal excitement this week, you may have missed BNA White House Reporter Cheryl Bolen’s article on Section 4 of the 14th Amendment (AKA, the Public Debt Clause) and the possibility of another debt ceiling crisis. The article (“Obama Could Face Sophie’s Choice as Country Approaches Debt Limit”) begins: “As the nation again approaches its statutory debt limit this winter, President Obama may be forced to choose among potentially illegal or economically disastrous options, such as borrowing money without the approval of Congress or doing nothing as the country defaults on its debt.”
Professor Epps is interviewed at some length in defense of his argument, familiar to readers of this blog, that “[t]he president could in good conscience point to Section 4 of the 14th Amendment as a basis for unilaterally borrowing money.”
On the other side is me,[*] armed only with constitutional text, historical practice, and judicial precedent. With some cover fire from Larry Tribe, Erwin Chemerinsky, and the Congressional Research Service.
Somewhere in the middle is Professor Peter Shane who, while acknowledging that it is “probably unlikely that when the 14th Amendment was drafted, it was intended to give the president some new, unprecedented power to incur debts on behalf of the United States,” suggests that one could reach the same result as a matter of statutory construction. Essentially he argues that if Congress has given the president a whole bunch of conflicting instructions regarding revenues, spending and debt, it might do the least damage to congressional intent for the president to borrow in excess of the debt limit.
The problem, as I point out, is that no one has every understood the statutory scheme to work that way, and one has to interpret congressional intent based on the background practices and assumptions on which Congress legislated. “’I think it’s a question of faithfully interpreting and then executing the laws. And I think the way presidents have always looked at it, correctly, is that when they hit the debt limit they have to go back to Congress and get an increase if they want to borrow more money,’ Stern said.”
Indeed, if it were otherwise, what would be the point of having a debt limit in the first place?
Thanks to the good folks at BNA, you can read the full article here.
Reproduced with permission from Daily Report
for Executives, 122 DER AA-1 (June 26, 2012).
Copyright 2012 by The Bureau of National Affairs,
Inc. (800-372-1033) <http://www.bna.com>
[*] I know it should be “I,” but that really sounds pretentious. Try it and see.